Monthly archive

July 2016

July/August 2016 SDR – Voice for the Defense Vol. 45, No. 6

Voice for the Defense Volume 45, No. 6 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D’s sentence for possession of child pornography was properly enhanced under 18 U.S.C.S. § 2252(b)(2) based on a prior state conviction for sexual abuse of an adult, since the phrase “involving a minor or ward” modified only abusive sexual conduct under the rule of the last antecedent and not the preceding basis of convictions for sexual abuse. Lockhart v. United States, 136 S. Ct. 958 (2016).

        D pleaded guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4). Because D had a prior state-court conviction for first-degree sexual abuse involving his adult girlfriend, his presentence report concluded that he was subject to the 10-year mandatory minimum sentence en­hancement provided in § 2252(b)(2), which is triggered by, inter alia, prior state convictions for crimes “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” D argued that the limiting phrase “involving a minor or ward” applied to all three state crimes, so his prior conviction did not trigger the enhancement. Disagreeing, the district court applied the mandatory minimum. The Second Circuit and Supreme Court affirmed.

        D’s prior conviction is encompassed by § 2252(b)(2). A natural reading of the text supports that conclusion. The “rule of the last antecedent,” a canon of statutory interpretation stating that “a lim­iting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows,” Barnhart v. Thomas, 540 U.S. 20 (2003), clarifies that the phrase “involving a minor or ward” modifies only the immediately preceding noun phrase “abusive sexual conduct,” and that the phrases “aggravated sexual abuse” and “sexual abuse” are not so restricted. The rule “can . . . be overcome by other indicia of meaning,” but § 2252(b)(2)’s context reinforces its application in this case.

The prosecution’s failure to disclose material evidence violated D’s rights; the state post-conviction court improperly evaluated the materiality of each piece of evidence in iso­la­tion rather than cumulatively, and failed even to mention the statements of the two in­mates impeaching the first witness. Wearry v. Cain, 136 S. Ct. 1002 (2016).

        D unsuccessfully sought post-conviction relief in state court while on Louisiana death row. He urged that the prosecution failed to disclose evidence supporting his innocence, violating Brady v. Maryland, 373 U. S. 83 (1963), and that his trial counsel provided ineffective assistance, violating U.S. Const. amend. VI.

        Contrary to the state post-conviction court, the Court here concluded that the prosecution’s failure to disclose material evidence violated D’s due process. The Court reversed the post-conviction court’s judgment on that count and remanded, and thus did not reach D’s ineffective-assistance claim. The denial of D’s Brady claim ran up against settled constitutional principles. The prosecution’s failure to disclose material evidence violated D’s rights because the newly revealed evidence sufficed to undermine confidence in D’s conviction. The only evidence directly tying D to capital murder was a first witness’ dubious testimony, corroborated by the similarly suspect testimony of a second witness; and the first witness’ credibility, already impugned by his many inconsistent stories, would have been further diminished had the jury learned various new evidence.

Fifth Circuit

Where Ds (well-site leaders on the Deepwater Horizon drilling rig) were charged with 11 counts of seaman’s manslaughter (in violation of 18 U.S.C. § 1115) for the 11 deaths on the Deepwater rig in the blowout of the Macondo well, the district court did not err in dismissing those counts because neither defendant fell within the meaning of “[e]very . . . other person employed on . . . any vessel” in § 1115. United States v. Kaluza, 780 F.3d 647 (5th Cir. 2015).

        The Fifth Circuit agreed with the district court that this phrase covered only persons with responsibility for the “marine operations, maintenance, and navigation of the vessel” and that defendants were not such persons.

The court’s condition forbidding any computer or internet access without prior probation-officer approval, for juvenile convicted of abusive sexual contact with a minor under 12, was too restrictive. United States v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015).

        The district court did not abuse its discretion in (1) forbidding contact with children under 16 without prior probation-officer approval, (2) forbidding loitering around places primarily used by children under 16, (3) requiring monitoring of juvenile’s computer and internet use, (4) requiring him to sub­mit to searches and seizures, and (5) requiring him to produce fi­nancial records; additionally, the court did not plainly err in forbidding juvenile from engaging in an occupation where he has access to children, without prior probation-officer approval. However, the Fifth Circuit found the condition forbidding any computer or internet use or access without prior probation-officer approval was too restrictive; the Fifth Circuit ordered that this condition “is not to be construed or enforced in such a manner that the Juvenile would be required to seek prior written approval every single time he must use a computer or access the internet.” In light of this ruling, the Fifth Circuit also struck the special condition requiring the juvenile to produce evidence that no payments were made to gain access to the internet.

Where district court found D’s 28 U.S.C. § 2255 motion was successive and thus transferred the motion to the court of appeals pursuant to § 1631, D could appeal the transfer without a certificate of appealability; the Fifth Circuit affirmed the transfer and ordered dismissal. United States v. Fulton, 780 F.3d 683 (5th Cir. 2015).

        A transfer order under § 1631 is not a final order within the meaning of 28 U.S.C. § 2253(c)(1)(B), and the appeal of such an order does not require a certificate of appealability. Finding that the district court correctly determined that the § 2255 motion was successive, the Fifth Circuit affirmed the transfer order; because another panel of the Fifth Circuit previously denied D’s motion for authorization for a successive petition, the Fifth Circuit remanded to the district court with instructions to dismiss D’s § 2255 motion for want of jurisdiction.

Agents had reasonable suspicion to stop D suspected of (and eventually convicted of) false statements in connection with the acquisition of a firearm (“straw buying”) based on a tip from the gun-shop employee from whom D bought the firearms. United States v. Ortiz, 781 F.3d 221 (5th Cir. 2015).

        Additionally, the warrantless search of D’s vehicle was permissible under the automobile exception because D’s own statements to the agents provided probable cause for the search.

        (2) D was not “in custody” for Miranda purposes when two agents questioned him in a law-enforcement vehicle for 20 minutes because, inter alia, the agents told him he was not under arrest.

The Government breached the plea agreement by using protected information to increase D’s sentence. United States v. Chavful, 781 F.3d 758 (5th Cir. 2015).

        Where the Government, in its plea agreement with D, agreed that information obtained from D’s cooperation was “not to be used to increase [D’s] Sentencing Guideline level or used against [D] for further prosecution” and the agreement specifically referenced USSG § 1B1.8, the Government breached the agreement by using protected information to increase his sentence. The Fifth Circuit remanded for resentencing by a different district judge.

District court did not reversibly err in applying a 16- level “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i) based on D’s prior Georgia conviction for possession with intent to distribute marijuana. United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir. 2015).

        The Fifth Circuit rejected the notion that an offense must require proof of remuneration or commercial activity to be included as a “drug trafficking offense” under USSG § 2L1.2. An offense that matches the listed “drug trafficking offenses” in the definitional Application Note, as did this Georgia offense (Ga. Code § 16-13-30(j)(1)), qualifies for enhancement even if the offense does not require such proof. Dennis dissented, arguing that “drug trafficking” in the text of the Guideline does require proof of remuneration or commercial activity.

District court did not err in sentencing illegal-reentry D to a $2,500 within-Guideline fine and alien D convicted of drug and gun offenses to a $5,000 within-Guideline fine with a monthly payment schedule set at 1/3 of each defendant’s prison earnings, conditional on the prisoner being allowed to work in prison. United States v. Pacheco-Alvarado, 782 F.3d 213 (5th Cir. 2015).

        The district court’s order did not impermissibly trench upon the Federal Bureau of Prisons’ authority to administer its Inmate Financial Responsibility Program. Furthermore, al­though Ds’ presentence reports indicated that they had no pres­ent ability to pay, the fines were based on implicit conclusions about Ds’ future ability to pay and were not unreasonable. The Fifth Circuit did remand one defendant’s case to correct the written judgment to reflect the district court’s orally pronounced payment schedule.

Where D’s federal habeas counsel was also D’s state ha­beas counsel, the fact that ineffectiveness of state habeas counsel might constitute cause for failure to raise an ineffective-assistance claim did not require ap­pointment of additional federal habeas counsel to investigate whether D had a claim; however, the Fifth Circuit exercised its authority to appoint supplemental counsel. Speer v. Stephens, 781 F.3d 784 (5th Cir. 2015).

        Where federal habeas counsel for death-sentenced Texas D was also D’s state habeas counsel, the mere fact that ineffectiveness of state habeas counsel might (under Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Treviño v. Thaler, 133 S. Ct. 1911 (2013)), constitute cause for failure to raise an ineffective-assistance claim did not require the appointment of additional federal habeas counsel to investigate whether D had any viable claim under Martinez or Treviño; however, in the interest of justice, the Fifth Circuit exercised its authority under 18 U.S.C. § 3599 to appoint supplemental counsel for the sole purpose of determining whether D had additional habeas claims that ought to have been brought. The Fifth Circuit denied original counsel’s motion to withdraw and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño that he might raise and, if so, whether those merited relief.

Fifth Circuit granted D’s motion for new supplemental federal habeas counsel and remanded for appointment of supplemental counsel and to consider in the first instance whether D had claims pursuant to Martinez and Treviño. Sandoval Mendoza v. Stephens, 783 F.3d 203 (5th Cir. 2015).

        Citing Speer v. Stephens (above), the majority granted death-sentenced Texas D’s motion for new supplemental federal habeas counsel and remanded the case for appointment of supplemental counsel and to consider in the first instance whether D had any claims pursuant to Martinez and Treviño and, if so, whether those merited relief.

District court did not reversibly err in applying to ille­gal-reentry D a “drug trafficking offense” enhancement under USSG § 2L1.2(b)(1)(A)(i); although D’s previous offense of conviction (possession of a controlled substance for sale, Cal. Health & Safety Code § 11351) is not categorically a “drug trafficking offense,” D’s conviction was permissibly narrowed to possession of heroin for sale, which does qualify. United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015).

        In applying this modified categorical approach, the district court did not clearly err in finding the criminal complaint was the charging instrument under which D was convicted, given the lack of any evidence to the contrary. Finally, the district court did not, on this record, clearly err in finding D was indeed the person convicted in the prior California case.

Court of Criminal Appeals

After finding the evidence insufficient to support D’s conviction of tampering with evidence by destruction, COA erred in not reforming the judgment to the lesser-included offense of attempted tampering with evidence because the State proved those elements. Rabb v. State, 483 S.W.3d 16 (Tex.Crim.App. 2016).

        D was found guilty of tampering with evidence by destruction and appealed, asserting the evidence was legally insufficient to support his conviction; COA agreed. CCA agreed but remanded for COA to determine whether D’s conviction should be reformed to the lesser-included offense of attempted tam­pering with evidence under Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App. 2014). COA then found it could not reform D’s conviction because he lacked the specific intent to destroy the evidence. The State filed a petition for review, which CCA granted to consider whether COA erred in its application of Thornton in choosing not to reform the judgment to the lesser-included offense. CCA reversed COA and remanded.

        Reformation to the lesser offense was mandated under Thorn­ton because COA determined that the factfinder found every element necessary to convict D of attempted tampering, and that the evidence was sufficient to support a conviction of attempted tampering. The evidence showed that the officers in­formed D that they were questioning him concerning a theft, and he then swallowed a baggie of pills.

Though D claimed he would not have pled guilty to drug possession had he known there was not enough substance left to test, his mistaken belief that drug evidence would be available to use against him at trial did not render his plea involuntary. Ex parte Palmberg, No. WR-82,876-01 (Tex.Crim.App. Feb 24, 2016).

        D pled guilty to one count of possession of a controlled substance, namely cocaine, and the court sentenced him to 90 days in jail. He did not appeal. Seven years later, however, D filed this post-conviction habeas application under Tex. Code Crim. Pro. art. 11.07. He claimed his plea was involuntary because at the time he entered it, he mistakenly believed that if he proceeded to trial, the State would be able to prove the sub­stance he possessed was cocaine. CCA remanded this application to the trial court for supplemental findings of fact. After remand, CCA ordered the application to be filed and set for submission to determine whether a guilty plea is involuntary when the defendant mistakenly believes that certain inculpating evidence would be available for use against him should he proceed to trial. CCA denied relief.

        A plea is not necessarily involuntary because the defendant pled guilty under the mistaken belief that specific evidence would be available for use against him. D did not show that the State used false or misleading evidence to induce his plea, or that he was under any misapprehension about the true nature of the substance he possessed, and there was no evidence to undermine his judicial confession, which was alone suf­fi­cient to support his guilty plea.

When a jury imposed consecutive sentences that were unauthorized under Tex. Penal Code § 3.03(a) and was directed to reconsider, after which it imposed two sentences equaling the combined length of the unauthorized sentences, it was error to direct the jury to re­consider its sentences. Nixon v. State, 483 S.W.3d 562 (Tex.Crim.App. 2016).

        D was charged with burglary of a habitation and evading arrest or detention with a vehicle. He was tried before a jury. He pled guilty to both. At the conclusion of evidence, the judge instructed the jury to find D guilty of the offenses. The jury was further instructed to assess punishment in each cause and was given the punishment ranges. During its deliberations, the jury sent a note to the judge that asked, “Do the sentences run concurrently or sequential[ly]?” The judge responded only that the jury was to continue deliberating. The jury returned verdicts of seven years for the burglary and nine years for the evading charge. However, on each verdict form there was an asterisk next to the term of years that referred to a handwritten notation at the bottom of the verdict. Each notation stated, “To be served consecutively with [the other charge] not concurrently.”

        The judge did not receive the verdicts, but instead sent the jurors to deliberate further with this additional instruction: “You are further instructed that the Court cannot accept and receive your verdicts as stated. You are instructed that the sentences in both causes must be served concurrently by operation of law.” Soon after, the jury returned verdicts assessing punishment at 16 years’ confinement for both offenses. D was sentenced accordingly. D appealed. COA affirmed that Tex. Code Crim. Proc. art. 37.10(b) did not require the judge to accept and reform the original verdicts.

        CCA reversed: “According to statute, however, the judge was required to accept the original verdicts and reform them in accordance with the law. We therefore must reverse the court of appeals’ judgments and reform the trial court’s judgments to reflect the original verdicts to be served concurrently.” The jury’s original verdicts were not informal, under Tex. Code Crim. Proc. art. 37.10(a), as they were complete, unambiguous, un­con­ditional, and not contradictory; its verdicts were not cumulative sentencing authorized by Tex. Penal Code § 3.03 that was not punishment; and Tex. Code Crim. Proc. art. 37.10(b) clearly required the trial court to reform the jury’s verdicts to impose the punishment that was authorized and omit the pun­ish­ment that was unauthorized.

The governor’s power to exercise a veto could not be circumscribed by the Legislature, courts, or district at­torneys; when the State sought to prosecute the governor for a veto under the abuse of official capacity statute, Tex. Penal Code § 39.02, the prosecution violated separation of powers, Tex. Const. art. V, §§ 21, 30. Ex parte Perry, 483 S.W.3d 884 (Tex.Crim.App. 2016).

        The charges against appellant Rick Perry arose from his Texas governorship. A Travis County grand jury returned a two-count indictment against him. Count I alleged the offense of “abuse of official capacity,” and Count II alleged the offense of “coercion of a public servant.” Count I alleged that Perry abused his official capacity by misusing funds appropriated to the Public Integrity Unit of the Travis County District Attorney’s Office, and Count II alleged he coerced a public servant, District Attorney Rosemary Lehmberg, by threatening to veto the funds for that unit if she did not resign.

        “This case arises from a governor’s threat to exercise a veto and his ultimate exercise of that veto. Whether the State can prosecute the governor for these acts depends upon (1) whether prosecuting the exercise of a veto under the ‘abuse of official capacity’ statute is a violation of the Separation of Powers provision of the Texas Constitution, and (2) whether the relevant portion of the ‘coercion of a public servant’ statute, being used to prosecute the threat to exercise a veto, is facially unconstitutional in violation of the First Amendment. Before reaching the first question, we must also decide whether the governor can raise his separation of powers complaint as an as-applied challenge in a pretrial habeas application followed by an interlocutory appeal. Answering these three questions in the affirmative, we reverse the judgment of the court of appeals with respect to count one, affirm the judgment of the court of appeals with respect to count two, and order the dismissal of the indictment.” The portion of the coercion statute, Tex. Penal Code § 36.03(a)(1), prohibiting a threat, however communicated, to take or withhold action as a public servant, as it incorporated Tex. Penal Code § 1.07(a)(9)(F), was unconstitutionally overbroad in violation of U.S. Const. amend. I.

COA erred in finding Tex. Transp. Code § 724.012(b)(3)(B), requiring an officer to take blood from a repeat DWI offender who is arrested for that offense, was not facially unconstitutional; COA lacked the benefit of re­cent Supreme Court and CCA decisions. McGruder v. State, 483 S.W.3d 880 (Tex.Crim.App. 2016).

        D was arrested for driving while intoxicated. As officers were preparing an affidavit for a blood-specimen warrant, they learned D had two prior DWI convictions, so they took him to the hospital without a warrant and had his blood drawn. They decided a warrant was unnecessary because D met the cri­teria for an automatic blood draw under Tex. Trans. Code § 724.012(b)(3)(B), which requires an officer who has arrested a driver for DWI to take a specimen of that driver’s breath or blood for analysis of blood alcohol concentration when the officer has reliable information that the driver has two or more prior DWI offenses; the driver may not refuse, and police must compel him to give a specimen, even in the absence of his as­sent-in-fact. At trial, the judge allowed the blood evidence though D objected that the statute was unconstitutional. D was convicted of felony DWI.

        D framed his only point of error on appeal as follows: “In the absence of exigent circumstances or consent, Section 724.012(b)(3)(B) of the Texas Transportation Code, violates the Texas and United States constitutional prohibitions against unreasonable searches and seizures.” COA construed this to be a facial challenge to the constitutionality of the statute, not an as-applied challenge, and rejected it as such.

        CCA vacated COA’s judgment and remanded to that court for further consideration in light of the intervening City of Los Angeles v. Patel, 135 S.Ct. 2443 (2015), and State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App. 2014). Patel held that a facial challenge is an attack on a statute itself as opposed to a particular application, and that Fourth Amendment challenges to statutes authorizing warrantless searches are no exception to the general rule that facial constitutional attacks may proceed under an array of constitutional provisions. Indeed, according to Patel, “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.”

        Here, CCA replied: “Still, no appellate court in Texas of which we are aware has yet declared Section 724.012(b)(3)(B) to be unconstitutional on its face. This is no surprise, since fa­cial challenges to the constitutionality of a statute are not or­di­narily easy to establish.” To prevail on a facial challenge of the sort D brought, he must establish that the statute always operates unconstitutionally in all possible circumstances. COA observed that the statute, “as written . . . does not require a blood or breath specimen to be taken contrary to the Fourth Amendment; that is, without a warrant or a recognized exception to the warrant requirement.” Because the statutory mandate could be carried out consistently with the dictates of the Fourth Amendment, COA concluded, it was not unconstitutional on its face. When COA was considering this case, it did not have the benefit of Patel (determining the standard of review for facial constitutionality) or Villarreal (holding that § 724.012(b)(3)(B) does not, by itself, “form a constitutionally valid alternative to the Fourth Amendment warrant requirement”).

D’s conviction for resisting arrest was proper because he used force against an officer in opposing his arrest. Finley v. State, 484 S.W.3d 926 (Tex.Crim.App. 2016).

        At D’s bench trial, the judge convicted him for resisting arrest because he opposed police attempts to handcuff him. COA found the evidence legally sufficient to support D’s conviction. CCA affirmed because D used force “against” the officers in op­posing his arrest as required by the resisting arrest statute, Tex. Penal Code § 38.03. D used force against the officers by pull­ing against the officers’ force; pulling away from the offi­cers satisfied the “in opposition or hostility to” the police officers requirement.

D did not preserve his objection to the two-step nature of his custodial interrogation (question first, give Miranda warnings later) because he made no challenge to this two-step interrogation in his written motions to suppress and only mentioned the two-step inter­ro­ga­tion in the latter half of his closing argument at the motion to suppress hearing. Vasquez v. State, 483 S.W.3d 550 (Tex.Crim.App. 2016).

        Prior to his capital murder trial, D filed two motions to suppress all oral statements given to police while he was in custody. The court allowed the statements, and D was convicted. D appealed the admission of his recorded interview on the ground that it was obtained after unrecorded and pre-Miranda interrogations, pursuant to an illegal two-step interrogation. CCA disagreed.

        “We granted the State’s petition for discretionary review to determine whether appellant preserved his objection to the two-step nature of his custodial interrogation when he lodged a delayed objection that put neither opposing counsel nor the trial court on notice as to its legal basis. Because we hold that he did not, we reverse the judgment of the Fourteenth Court of Appeals.” The State’s lack of a response to the “two-step” comment at the hearing indicated that it did not understand the objection because the State had the burden of disproving a deliberate two-step interrogation, and it had a witness available to testify as to warnings but did not call him. Because D failed to preserve his two-step interrogation complaint, it was immaterial whether he was subjected to custodial interrogation during any of the prior unrecorded interviews, which were not offered as evidence.

Where an indictment alleged D committed theft against four complainants pursuant to a continuing course of conduct, COA erred in holding that jurors had to unanimously agree on each underlying transaction used to comprise the Tex. Penal Code § 31.09 aggregate theft charge. Kent v. State, 483 S.W.3d 557 (Tex.Crim.App. 2016).

        An indictment alleged that D, a mortgage broker, committed theft against four named complainants in an amount exceeding $200,000, and that the thefts occurred over a specified period and were pursuant to one scheme or continuing course of conduct. A jury found him guilty, and the court sentenced him to 60 years’ imprisonment and ordered him to pay restitution to the complainants. On appeal, D alleged reversible jury-charge error. COA agreed and remanded for a new trial. CCA reversed COA.

        “Section 31.09 of the Penal Code provides that, ‘[w]hen amounts are obtained in violation of [Chapter 31: Theft] pur­suant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in de­ter­mining the grade of the offense.’ In this case, because the thefts were alleged to have occurred pursuant to a single scheme or continuing course of conduct, the conduct may be considered as one offense and the amounts aggregated. . . . We have recognized that, ‘[a]lthough theft under Section 31.09 consists of two or more incidents of theft, the statute makes them one offense.’ . . . Thus, although appellant was alleged to have committed mul­tiple thefts, pursuant to the Section 31.09 allegations they constituted a single felony offense.” In other words, to fulfill § 31.09, any number of specific acts of theft may be combined in a single charge as long as they were part of the same scheme. The aggregated theft is proven as long as the jury unanimously agrees that the proven thefts exceed the threshold amount, re­gard­less of which transactions each juror believes to have oc­curred. The trial court properly overruled D’s objection to the jury charge and submitted a proper application paragraph that tracked the indictment.

Court of Appeals

Where D was convicted of possession of meth with intent to deliver, Tex. Health & Safety Code § 481.112(d), he was not entitled to a mistrial based on an officer’s testimony that he was watching a drug house before he stopped D because the court instructed the jury to disregard the testimony; also, under Tex. R. App. P. 33.1, D failed to preserve his constitutional complaints. Carrion v. State, No. 11-14-00123-CR (Tex.App.—Eastland Apr 29, 2016).

        “In Issues One and Two, Appellant argues on appeal that the trial court abused its discretion and denied Appellant his Sixth Amendment right to present a defense. To strengthen his defense that he no longer used, sold, or possessed drugs and that the drugs were planted in his home by [witness], Appellant sought to introduce into evidence the police video of the . . . traffic stop and the testimony that [witness] avoided the subpoena that Appellant had requested for him. The State ob­jected to the video on relevance and hearsay grounds and to the subpoena evidence on hearsay grounds. The trial court sustained the objections. . . . Appellant, however, did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to present a complete defense was violated. Because Appellant did not raise this argument at trial, he has failed to preserve error for our review. . . .

        “In Appellant’s third issue, he argues that the trial court erred when it denied his motion for mistrial. . . . During cross-examination, the State asked Officer Poynor whether the house he was ‘watching’ before the traffic stop of Appellant was a ‘known drug house.’ Officer Poynor testified, ‘Yes.’ Appellant objected, and the trial court sustained his objection and specifically instructed the jury ‘to disregard the argument from coun­sel, State’s counsel, with regard to that matter, that response that was just made.’ . . . The trial court did not err when it denied Appellant’s motion for mistrial because the prompt instruction was sufficient. . . .

        “In Appellant’s fourth issue, he argues that the trial court abused its discretion and denied Appellant his Sixth Amendment right to confrontation when it overruled his hearsay ob­jec­tion and allowed a deputy sherriff to testify during the pun­ishment phase of the trial that Appellant was a member of the Texas Syndicate gang. . . . Appellant objected to the deputy sheriff’s testimony on hearsay grounds, but did not raise any constitutional objections. Appellant did not, at any time, object or advise the trial court that Appellant’s Sixth Amendment right to confrontation was violated. Because Appellant did not raise this argument at trial, Appellant has failed to preserve error. . . . We affirm the judgment of the trial court.”

SMO: Front–Loading Mitigation

Empathy breeds proper judgment. . . . Empathy gives you an inside view. It doesn’t say, “If that was me . . .” Empathy says, “That is me.”

—Final words of Ray Jasper before being
executed by Texas on March 19, 2014

Empathy frames choices about punishment. Empathy for the victim extends sentences; empathy for the defendant embraces mitigation. A couple of neurological studies exploring empathy reveal, without surprise, that a sense of fairness modulates the experience of empathy. However, the sense of fairness weighs heavier on the men than the women, which indicates men and women use different neural processes when exposed to potentially empathic evidence. These studies suggest that we may have to introduce mitigation early, “front load” mitigation to have any chance with male jurors.

Neuroscientists studying how the brain processes empathy asked subjects to play a game where they trade with a partner. Sometimes the partner trades fairly, sometimes unfairly. The subjects then sat in an fMRI machine and saw photographs of the partner in pain.1 Generally, for both men and women, seeing a stranger in pain activates the brain regions of the right interior insula and the right anterior and cingulate cortex.2 However, when the men saw an unfair game partner in pain, those brain regions showed either greatly diminished response or no response while the regions normally associated with reward responded.3

When women saw the unfair partner in pain, the normal em­pathetic regions showed somewhat muted activation but the reward centers showed no activity. Clearly, the neurological process for empathy varies between men and women when the defendant appears unfair. For men, the neurological process for empathy seems mostly altered and unavailable; for women, the process stands somewhat muted. A defendant must appear fair then, regardless of what he has done, before men will feel any significant empathy.

A related study showed different neural processing between men and women when asked to compare their own emotions to the emotions (not necessarily pain) of a person in a photograph.4 Women, when making the comparison, showed activation in the right inferior frontal cortex and the right cerebellum, areas that usually involve the direct experience of emotion. Men showed an activation in the tempoparietal junction, which processes thoughts about the relation of self to others. In addition to processing empathy differently based upon fairness, men analyze the emotion of others differently than women. Merely showing the emotions a defendant experienced—frustration, sadness, or fear—and asking men to consider what the defendant’s emotions meant will not compel male jurors to walk in the defendant’s shoes.

Fairness is primal for promoting an empathetic response in men. To promote and protect fairness, we need to examine the factual details of the offense and introduce mitigating evidence as early as possible. For example, imagine the prosecutor accused the defendant of shooting a clerk during a robbery. During voir dire we can ask “Could anything compel a person to rob?” or “Is there a safe way to rob a stranger?” Both of these questions could potentially relate to defenses (such as duress, theft from person rather than robbery), but the questions may also suggest viewing the offense from both the victim’s and the shooter’s point of view.5 Later, when a detective introduces the store video, we can ask about the poor condition of the shooter’s clothing or shoes, if shooter drove or was on foot, or whether he seemed high, etc. If we have a live eyewitness, we can ask what the shooter smelled like, if he was dirty, and so forth. Further, somewhere in this process—when responding to an objection or prefacing a question—we can agree that no victim deserves to be killed and no defendant is entitled to rob or kill, but we introduce these facts only to help the jurors understand the whole incident. Seeing the shooter’s desperation or deprivation, at the time of the offense, promotes both a universal version of the offense and reveals a shooter who is more than just mean.6

A shooter will never be completely fair. When we introduce these type details, we may even prompt the prosecutor to holler that no victim deserves to die and no one is entitled to rob and kill. But we should not cower. We cannot allow fairness to remain exclusively in the domain of the prosecution or the victim. We can build in fairness for the defendant, even if he proclaims his innocence, by carefully presenting the details of the offense and implanting mitigating themes during voir dire and during the introduction of the offense.

Introducing mitigating evidence prior to a sentencing hearing should not leave us speechless during the sentencing hearing either. If the jury (or judge) arrives at sentencing seeing why the defendant committed the crime, then during sentencing we are free to discuss what happens now—e.g., how the defendant’s problems can be corrected, how much the defendant should suffer given the universal view of the offense, and just what mea­sures will ensure the safety of the survivors in the future. We are not required to save mitigating themes for the sentencing hearing to pursue a just and merciful sentence.

Mitigating evidence, introduced with the offense or during voir dire, can protect the fairness needed for male jurors to feel an empathetic (or mitigating) response during a sentencing hearing. Mitigating evidence can protect or promote a sense of fairness by describing the circumstances beyond the defendant’s control that compelled him to be the person he is and to act the way he does, including committing the offense. When seeking empathy from male jurors, front-loading mitigation, or combining guilt and sentencing evidence, may be necessary for any lenient or merciful punishment.

Notes

1. Tania Singer, Ben Seymour, John P. O’Doherty, Klaas E. Stephan, Raymond J. Dolan, and Chris D. Frith, Empathic neural responses are modulated by the perceived fairness of others, Nature, Jan 26; 439(7075): 466–469, (2006).

2. Boris C. Bernhardt and Tania Singer, The Neural Basis of Empathy, Annual Review of Neuroscience Vol. 35: 1–23 (July 2012).

3. Singer, Empathic neural responses.

4. Martin Schulte-Rüther, Hans J. Markowitsch, N. Jon Shah, Gereon R. Fink, and Martina Piefke, Gender differences in brain networks supporting empathy, NeuroImage 42, 393–403 (2008).

5. For a defendant’s right to voir dire on defense, see Tex. Const. art. I, § 10 (“ In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both. . . .”); Jones v. State, 223 S.W.3d 379, 381-82 (Tex.Crim.App. 2007)(holding denial of proper voir dire question is error of constitutional magnitude); Rodriguez-Flores v. State, 351 S.W.3d 612, 619 (Tex.App.—Austin 2011)(discussing voir dire regarding questions of duress). For capital cases, in Morgan v. Illinois, 504 U.S. 719, 729 (1992), the United States Supreme Court determined that jurors who could not give effect to mitigation evidence could be struck for cause, but the concepts here should not be limited to capital cases. Male jurors serve on non-capital as well as capital juries. We will often face male sentencing judges.

6. See Blakely v. Washington, 542 U.S. 296, 159 L.Ed.2d 403 (2004), where the United States Supreme Court refers to a lower court’s parsing of a defendant’s motives for committing the offense and the means of committing the offense to justify a specific punishment:

The defendant’s motivation to commit kidnapping was complex, contributed to by his mental condition and personality disorders, the pressures of the divorce litigation, the impending trust litigation trial and anger over his troubled interpersonal relationships with his spouse and children. While he misguidedly intended to forcefully reunite his family, his attempt to do so was subservient to his desire to terminate lawsuits and modify title ownerships to his benefit.

The defendant’s methods were more homogeneous than his motive. He used stealth and surprise, and took advantage of the victim’s isolation. He immediately employed physical violence, restrained the victim with tape, and threatened her with injury and death to herself and others. He immediately coerced the victim into providing information by the threatening application of a knife. He violated a subsisting restraining order.

542 U.S. 301 (internal citation omitted).

July Fourth Readings: The Principals

“A big thanks to all the hard-working people who made this historic event possible. Together, we made the profound words of the Declaration come alive in our hometowns. We reminded our fellow Texans that our devotion to the preservation of our liberty defines us as a people. We reminded those in power in the courts that we stand united against tyranny, no matter where we find it. A very special thanks to our state organizers (F Troop) for their work, humor, and spirited effort.” —Robert Fickman

Robb Fickman’s Fabulous F Troop of Committed Leaders:
Chuck Lanehart (Lubbock)
Kerri Anderson-Donica (Corsicana)
Tip Hargrove (Abilene)
David Schulman (Austin)
Mary Conn (Houston)
Michelle Ochoa (Beeville)
Mary Beth Harrell (Killeen)
Jim Darnell (El Paso)
Jeff Blackburn (Amarillo)
Sheldon Weisfeld (Valley)
Dustin Nimz (Wichita Falls)
Tammy Schmidt Keener (Fredericksburg)

 

And the troops:

 Abilene—Jenny Henley
Albany—Amanda C. Ruff
Alice—Michael Guerra
Alpine—Jim Darnell
Amarillo—Jeff Blackburn & Ryan Brown
Anderson—Lisa Mathews
Andrews—Lane Haygood
Angleton—Ron Helson
Anson—Stan Brown
Anuahac—Donlee Smith
Archer City—Dustin Nimz
Aspermont—Donnie Yandell
Athens—Danna Mayhall
Austin—Bradley Hargis
Baird—Stan Brown
Ballinger—John McGregor
Bandera—Donald Fidler
Bastrop—Eric Torberson
Bay City—Ralph Shepherd
Beaumont—Dustin Galmor
Beeville—Jessica Canter
Bellville—James J. Elick II
Belton—Mary Beth Harrell & Paul LePak
Benjamin—Reginald Wilson
Big Bend—Jim Darnell
Big Lake—Stephen Dodd
Big Spring—Chuck Lanehart & Lindsey Craig
Boerne—Charles Wetherbee
Bonham—Mel Bruder
Bracketville—Tully Shahan
Brady—Tammy Keener, Clay Steadman & Elle Jesko
Breckenridge—Franz Von Hoffman
Brenham—Robbie Gail Charette
Brownfield—Dick Baker & Allison Clayton
Brownsville—Phillip T. Cowen
Brownwood—Todd Steele
Bryan—Shane Phelps
Burnet—Michelle Moore
Caldwell—Marvin Martin
Cameron—Sharon Diaz
Canadian—Jeff Blackburn & Andrew Boyd
Canton—Nolan White
Canyon—Jeff Blackburn & Ryan Brown
Carrizo Springs—Emmett Harris & Edward Mallett
Carthage—Collin Underwood
Center—Dexter Jones
Centerville—Kerri Anderson-Donica
Channing—Len Walker & Andrew Boyd
Childress—Ryan Brown, Andrew Boyd & Len Walker
Clarendon—Ryan Brown & Andrew Boyd
Clarksville—Laura McCoy
Claude—Ryan Brown & Andrew Boyd
Cleburne—Patrick Barkman
Coldspring —Bob Mabry
Coleman—Stuart Holden
Colorado City—John Young & Chris Hartman
Columbus—Phil Baker
Comanche—Keith Woodley & Judson Woodley
Conroe—Josh Zientek
Cooper—Bart Craytor
Corpus Christi—Lisa Greenberg
Corsicana—Kerri Anderson-Donica
Cotulla—Emmett Harris & Edward Mallett
Crane—Lane Haygood
Crockett—Kerri Anderson-Donica
Crosbyton—Jonette Walker, Anne Hazelwood & David Hazelwood
Crowell—Todd Greenwood
Crystal City—Emmett Harris & Edward Mallett
Cuero—Joseph Sheppard
Daingerfield—Bill McCoy & Bart Craytor
Dalhart—Len Walker & Andrew Boyd
Dallas—Clifford Duke
Decatur—Brian Alexander
Del Rio—Joseph Cordova
Denton—Sarah Roland & Ben Hunsucker
Dickens—Jonette Walker, Anne Hazelwood & David Hazelwood
Dimmit—Laurie Key & Sarah Johnson
Dumas—Jerod Pingelton
Eagle Pass—Poncho Nevarez
Eastland—Landon Thompson
Edinburg—Oscar Vega
Edna—Patti Hutson
Eldorado—Tom Davidson
Emory—Bart Craytor
El Paso—Jim Darnell
Fairfield—Michelle Latray & Chad Morgan
Falfurrias—Michael Guerra
Farwell—Justin Kiechler, Matt Morrow & Sarah Gunter
Floresville—Stephen Barrera
Floydada—Jonette Walker, Anne Hazelwood & David Hazelwood
Fort Davis—Roger W. Phillips
Fort Stockton—Kevin Acker
Fort Worth—Shawn Paschal
Franklin—Bill Juvrud
Fredericksburg—Tammy Keener
Gail—Chuck Lanehart & Lindsey Craig
Gainesville—Larry Claxton
Galveston—Ron Rodgers
Garden City—Chuck Lanehart & Lindsey Craig
Gatesville—Deborah Drummond & Jim Drummond
Georgetown—Russell Hunt, Shawn Dick & John Armstrong
George West—Jessica Canter
Giddings—Phil Baker
Gilmer—Andy Tefteller
Glen Rose—Landon Thompson
Goldthwaite—Keith Woodley & Jud Woodley
Goliad—Jessica Canter
Gonzales—Joe Shepherd
Graham—Franz Von Hoffman
Granbury—George White
Greenville—Katherine Ferguson
Groesbeck—Michelle J. Latray
Groveton—Melissa Hannah
Guthrie—Donnie Yandell
Hallettsville—Phil Baker
Hamilton—Mary Beth Harrell
Haskell—Reginald Wilson
Hebbronville—Henry Guerra
Hemphill—Lisa Fountain
Hempstead—James Rivera
Henderson—Nick Bennett
Henrietta—Katie Woods
Hereford—Len Walker
Hillsboro—Paul Fulbright
Hondo—Tony Hackebeil
Houston—JoAnne Musick, Tyler Flood & Robb Fickman
Huntsville—David O’Neil
Jacksboro—Robert Massey
Jasper—Robb Fickman
Jayton—David Hazlewood, Anne Hazlewood & Jonette Walker
Jefferson—Bill Gleason
Johnson City—Zach Hudler
Jourdanton—Megan Harkins
Junction—Clay Steadman & Elle Jesko
Karnes City—David Chapman
Kaufman—Michael Ray Harris
Kermit—Kevin Ackerman
Kerrville—Clay Steadman & Elle Jesko
Kingsville—Jaimie Carillon
Kountze—Robb Fickman
La Grange—Phil Baker
Lamesa—Dick Baker & Allison Clayton
Lampasas—Cheryl Sione & Tammy Keener
Laredo—Robert Balli
Leakey—Bob Galvan
Levelland—Justin Kiechler & Sarah Gunter
Liberty—Donlee Smith
Linden—Clint E. Allen
Lipscomb—Jeff Blackburn & Andrew Boyd
Littlefield—Justin Kiechler & Sarah Gunter
Livingston—Travis Kitchen & Melissa Hannah
Llano—Tammy Keener
Lockhart—David Schulman
Longview—David Moore
Lubbock—Rusty Gunter & Chuck Lanehart
Lufkin—Melissa Hannah & Al Charanza
Madisonville—Wes Hammit
Marfa—Dick DeGuerin & Mimi Smith
Marlin—Mathew Wright
Marshall—Kyle Dansby
Mason—Tammy Keener
Matador—Jonette Walker, Anne Hazelwood & David Hazelwood
McKinney—John O’Toole
Memphis—Ryan Brown & Andrew Boyd
Menard—Clay Steadman & Elle Jesko
Mentone—Kevin Acker
Meridian—Brittany Lannen
Mertzon—Tom Davidson
Miami—Jeff Blackburn & Andrew Boyd
Midland—Al Martinez
Monahans—Kevin Acker
Montague—Brian Alexander
Morton—Justin Kiechler & Sarah Gunter
Mount Pleasant—Bart Craytor, Mark Lesher & Laura McCoy
Mount Vernon—Bart Craytor, Mark Lesher & Laura McCoy
Muleshoe—Justin Kiechler & Sarah Gunter
Nacogdoches—Tim James
Navasota—Brent Cahill
New Boston—Bart Craytor, Mark Lesher & Laura McCoy
New Braunfels—Susan Schoon & Cathy Compton
Newton—Robb Fickman
Odessa—Lane Haygood
Orange—Marcus Wilkerson
Ozona—Orlando Rehoyos
Paducah—Donnie Yandell
Paint Rock—Tip Hargrove
Palestine—Kerri Anderson-Donica
Palo Pinto—Andrew Herreth
Pampa—Jeff Blackburn & Andrew Boyd
Panhandle—Jeff Blackburn & Andrew Boyd
Paris—Jerry Coyle
Pearsall—Grady Roberts
Pecos—Kevin Acker
Perryton—Jeff Blackburn & Andrew Boyd
Pittsburg—Bart Craytor, Mark Lesher & Laura McCoy
Plains—Dick Baker & Allison Clayton
Plainview—Troy Ballinger & Tina Davis Rincones
Port Lavaca—Jane Lane
Post—Jonette Walker, Anne Hazelwood & David Hazelwood
Quanah—Donnie Yandell & Dustin Nimz
Quitman—Sarah King & Larry King
Rankin—Stephen Dodd & Paige Skehan
Raymondville—Rachel Cook
Refugio—Jessica Canter & Michelle Ochoa
Richmond—Jeremy B. Ducote
Rio Grande City—Calixtro Villarreal
Robert Lee—Jessica Skinner
Roby—John Young & Chris Hartman
Rockport—J. E. Teague
Rocksprings—Karen Alexander
Rockwall—Justin Hall
Rusk—Kerri Anderson-Donica
San Angelo—Tip Hargrove
San Antonio—Adam Kobs & Warren Wolf
San Augustine—Tim James & Ed Malone
Sanderson—Jim Darnell
San Diego—David Towler
San Marcos—Sam Bassett
San Saba—Tammy Keener
Sarita—Daniel Dena & Jaime Carillo
Seguin—George Taylor
Seminole—Dick Baker & Allison Clayton
Seymour—Dustin Nimz
Sherman—John Hunter Smith
Sierra Blanca—Jim Darnell
Silverton—Laurie Key & Sarah Johnson
Sinton—Joel Thomas
Snyder—Donnie Yandell
Sonora—Orlando Dehoyos
Spearman—Andrew Boyd
Stanton—Dick Baker & Allison Clayton
Stephenville—Landon Thompson
Sterling City—Jessica Skinner
Stinnett—Andrew Boyd
Stratford—Andrew Boyd & Michael Kearns
Sulphur Springs—Frank Long & Kerri Anderson-Donica
Sweetwater—John Young & Chris Hartman
Tahoka—Douglas Frietag
Throckmorton—Reginald Wilson
Tilden—Jessica Canter
Tulia—Laurie Key & Sarah Johnson
Tyler—Brian Rollins & Bobby Mims
Uvalde—Emmett Harris
Vanderpool—David Black
Van Horn—Jim Darnell
Vega—Len Walker, Andrew Boyd & Michael Kearns
Vernon—Todd Greenwood & Dustin Nimz
Victoria—Constance Filley Johnson
Waco—Joshua Tetens
Waxahachie—John Perkins
Weatherford—Dan Carney & Tom Vick
Wellington—Ryan Brown, Andrew Boyd & Len Walker
Wharton—Mark Racer
Wheeler—Jeff Blackburn & Andrew Boyd
Wichita Falls—James Rasmussen & William Hull
Woodville—Robb Fickman & Christina Appelt
Zapata—Sheldon Weisfeld

OUT OF STATE
Angel Fire, NM—Matt Horak
San Diego, CA—Knut Johnson

OUT OF COUNTRY
Roatan, Honduras—Nicole DeBorde
Iceland—Tyler Flood
Prague, Czech Republic—Ken & Judy Mingledorff
Siena, Italy—Brent Mayr

 

Reading Old Words Is Good for the Soul

Perhaps my earliest memory as a baby lawyer was watching worried law professors and bar leaders wringing their hands, wondering: “How can we improve our image as lawyers? Pro bono work? Public service? Legal ethics education?” Nothing seemed to work. I soon realized the cynical conventional wisdom of Shakespeare’s often misinterpreted “Let’s kill all the lawyers” philosophy is a universal truth among the public, especially in the case of criminal defense lawyers.

PR is a tricky deal for criminal defense lawyers. The public generally regards us with a disgust and repulsion commensurate with that caused by the most heinous crime currently featured on local TV. We are obliged to say “no comment” a lot: very poor PR. Sometimes we win, but only our clients are happy. When we lose, almost everyone is grateful. So, in 1970, we formed a support group called the Texas Criminal Defense Lawyers Association, partly to address our public relations problem.

Almost half a century later, the July 2016 TCDLA-endorsed statewide reading of the Declaration of Independence is the single greatest public relations success in our association’s history, in my humble opinion. TCDLA has a wonderful tradition of supporting important legal challenges, spearheading essential legislative reforms, protecting its members and spreading comprehensive legal knowledge, but we are about the only ones who notice these accomplishments. So, we spend a great deal of time and effort congratulating ourselves for our successes (including this column). Meanwhile, we try to put our best foot forward for the public. After a six-year incubation period, this year’s Declaration readings became a ubiquitous lawyer feel-good movement, embraced by the public and media seemingly everywhere. Because of this grand focus of attention, the public was made aware that we are something more than mere zealous representatives of the citizen accused. Perhaps they thought, “These guys and gals are patriots just like me.”

But it was more than a PR stunt and much more than just a show for the public. It was like the culmination of a twelve-step program that made us, the lawyers, feel good. It galvanized the criminal defense bar for a unified, worthwhile, statewide show of support for the most basic of our American values. It made us feel patriotic on the most American day of the year. It transcended our roles as advocates for the little guys. It reinforced the reasons we choose to live here and do what we do for a living.

Here’s how it all started.

In Roswell, New Mexico, on a hot Independence Day evening in the early ’60s, a kid named Robbie Fickman witnessed the gleeful camaraderie of his father Philip and his buddies as they exploded fireworks in the street, a blatant violation of some silly city ordinance. It was a small rebellion that Robbie remembered. By the time he had kids of his own, the man now known as Robb famously required them to recite parts of the Declaration of Independence before indulging in July 4th festivities to instill in them the proper meaning of our national holiday celebrating revolution.

In 2010, Robb was a well-established Houston criminal defense lawyer. He and others in the Harris County Criminal Lawyers Association (HCCLA) were frustrated by years of adversarial relationships with the local judiciary. Robb suggested a symbolic, peaceful sort of protest against the modern-day tyrants who ruled the courthouse like Britain’s George III once ruled the colonies: HCCLA members would recite the Declaration of Independence on the courthouse steps just before July 4th. With backs to the courthouse. Without permission from anyone. About 15 lawyers read the great document, some media showed up, everyone got a big kick out of it, and the seeds of a movement were sown.

Annual Declaration readings by individuals and groups of criminal defense lawyers slowly spread across the state and nation.1 By 2015, TCDLA and many local criminal defense organizations had embraced the tradition, and on July 3 of last year, readings were held in 139 Texas counties, in several sister states, and in a couple of places overseas.2 Robb decided he would go “whole hog” in 2016, and in February, he asked TCDLA members for help in organizing a statewide campaign to hold readings in each of Texas’ 254 counties.

A dozen volunteers from all parts of the state answered Robb’s call to arms.3 The first agenda item was to name this small army. “Robb’s Texas Rangers” was suggested. As was “Fickman’s Foo Fighters.” Considering the seemingly impossible task of covering the huge expanse of Texas, “Fickman’s Folly” seemed appropriate.4 Instead, the optimists prevailed, and “F Troop” was chosen.5

F Troop went to battle, badgering lawyers statewide to lead local readings. Tens of thousands of emails and phone calls were exchanged over a period of about 15 weeks. A promotional video was produced, and an interactive map of counties and their Declaration leaders went online.6 On May 26, all the arm-twisting paid off. It was announced that each county in Texas had been claimed: 254 county seats plus a reading in the Big Bend, and supplemental readings in Bandera County (Vanderpool in addition to the county seat) and Grimes County (Navasota in addition to the county seat), 257 readings in all.7

The promotional budget for the project was zero. Some leaders donated a few of their own dollars for the campaign, but TCDLA was out nothing, other than the cost of a few plaques to recognize the members of F Troop. The leaders and readers donated untold amounts of valuable time and billable hours. Some traveled hundreds of miles on their own dimes to reach every far-flung village in the hinterlands.

Aside from a small Smith County flare-up, the readings were a huge success.8 Readers and organizers gushed on social me­dia about their special experiences in every venue, audience members expressed appreciation in every corner of the state, and newspapers and TV stations were universally positive in their Declaration-reading coverage.

The effect on individual TCDLA members who participated in the event was poignant. As is reflected in the accompanying article, one of the main themes running through their Declaration-reading stories is not patriotism or lawyerism, but family. Lawyers involved daughters and sons, spouses, grandchildren—even in-laws—in the readings. It was a way to inspire and connect, to educate and enlighten those who watch us struggle daily in our careers, perhaps without a clear understanding of what moves us to do what we must do. Those who participated should now know.

I will be surprised if TCDLA does not see a marked increase in membership as a result of this event, and participating local bars should experience a similar jump in interest. Even if mem­ber­ship is unaffected, the event should be heavily promoted every year, if for no other reason than the good it does for our collective souls.

Finally, I am reminded of a backhanded compliment I’ve heard from prosecutors and judges for many years: “That’s a true believer.” The statement says more about the prosecutor or judge than the intended target of the comment, I think. Many prosecutors and judges prefer to deal with criminal defense lawyers who are pragmatic and easy, who will convince clients to plead out to unreasonable deals, who will do anything to avoid a trial. They prefer defense lawyers who ignore their duty to zealously represent clients. A “true believer” is a criminal defense lawyer who regularly gets under the skins of prosecutors and judges, who always remembers his or her duty, and whose inspiration is the Declaration of Independence and the Bill of Rights.

Every TCDLA member who took part in the 2016 Declaration readings is not only an advocate and a patriot, but also “a true believer.”

Notes

1. 2010: Houston (about 15 readers).
2011: 30+ counties.
2012: 24 counties.
2013: 51 counties.
2014: 74 counties.
2015: 139 counties.
2016: 257 readings in 254 counties.

2. The experience of Declaration reading lends itself to wonderful experiences and stories. It is one reason readers seem to come back every year. Here’s a story Robb Fickman likes to tell:

Last year I drove to Liberty with Christina Appelt. I did the reading. We left and drove toward Kountze to do the reading there. I was speeding and got pulled over in some little East Texas town. I think the guy who pulled me over must have been the police chief. He had every police badge/sash/braid known to man attached to his uniform. He was dressed more like a Banana Republic Dictator than a cop. I thought, “Oh hell, what’s this guy gonna do to me?”

He approached the window and asked in a rough sarcastic voice if I had some kind of emergency. I said no, and then I paused and said, “But I am working on a special project.”

That piqued his interest. He probably didn’t get that line much. He asked, “What’s that?”

I then told him I was working with a group of lawyers reading the Declaration across Texas. I left out we were defense lawyers, as that fact was not helpful to my narrative.

I showed him my copy of the Declaration and Christina showed him photos of the courthouses in Liberty & Kountze. After listening to my story, he studied my copy of the Declaration. Then his demeanor changed. He smiled and in a friendly tone he pronounced: “I like that. I appreciate y’all doing this. Why don’t we just call this one a warning?”

We shook hands and we were off. I said to Christina, “Well now we really have to go to Kountze. He may know someone there.” And that’s how reading the Declaration saved my Liberty.

3. F Troop includes Robert Fickman of Houston, Chuck Lanehart of Lubbock, Kerri Anderson-Donica of Corsicana, Tip Hargrove of San Angelo, David Schulman of Austin, Mary Conn of Houston, Michelle Ochoa of Beeville, Mary Beth Harrell of Killeen, Jim Darnell of El Paso, Jeff Blackburn of Amarillo, Sheldon Weisfeld of Brownsville, Dustin Nimz of Wichita Falls, and Tammy Schmidt Keener of Fredericksburg.

4. This is a subtle historical reference to “Seward’s Folly.” William Seward was the U.S. Secretary of State who engineered the purchase of Alaska for $7 million from Russia (1867). Detractors called it “Seward’s Folly.” Similarly, Robert Fickman is the TCDLA leader who attempted to engineer a task most everyone agreed was sheer folly.

5. “F Troop” was a satirical American TV sitcom about U.S. soldiers and Native Americans in the Wild West during the 1860s that originally aired for two seasons on ABC.

6. The promotional video, produced by Sam Fickman of Los Angeles, and the interactive map, created by Charles Blevins of Lubbock, are available on the TCDLA home page: www.tcdla.com.

7. In addition to Texas, 2016 Declaration readings were held by criminal defense lawyers in San Diego, California; Angel Fire, New Mexico; Sienna, Italy; and Prague, Czechoslovakia.

8. https://www.tylerpaper.com/TP-News+Local/238023/kerry-max-cook-joins-criminal-defense-lawyers-in-reading-declaration-of-independence.

Declaration Reading Recollections and Media Mentions

“We came through the long Sanderson Canyon to the county seat of Terrell County. It turns out today is when the good folks of this county celebrate their independence at the Terrell County courthouse. My wife Sue, my younger son Jake, and I were escorted to the microphone, where we read the declaration to several hundred folks. Our reading was followed by the playing and singing of ‘God Bless America’ via the public address system and assembled folks. This was cool. Proof indeed that America and independence still live in the most remote stretches of the Lone Star state. God bless America.”

—Jim Darnell, El Paso

“I love music and I think you can’t have a Declaration reading without the singing of the national anthem and another patriotic song at the end, so this year, my 16-year-old granddaughter Bethany came through for me and asked the Athens High School Show Choir, of which she is a member, if they would like to sing the national anthem and if they had a patriotic medley to sing at the end, and they agreed to provide the music. Our monthly bar meeting coincided with the reading, so the bar decided to forego the meeting and attend the reading instead. My son-in-law’s barbecue joint agreed to take orders for the bar and the choir. Next I called on my son Gordon, who has experience in promoting events, to put together a video to advertise the reading. He spent several hours making a very professional video to post on Facebook. My daughter Danae took all the orders for the barbeque and brought it to the reading. My daughter Tara volunteered to be the videographer, and her three children—Jordon, Kyra, and Isaiah—volunteered to hand out programs to those who came.

“With about 40 people from the community in attendance, we managed to pull it off with very minimal problems. And the bar members who attended and participated loved the barbecue! My granddaughter Kyra and I then jumped in the car and drove to Palestine to read the Declaration there. It was a great day all in all, and I’m not going to wait to volunteer again next year.”

        —Danna Kirk Mayhall, Athens

“I invited my son Hunter to accompany me on my Declaration reading across the eastern edge of the South Plains. Hunter will soon begin his college career as a pre-law major. I thought this would be a great opportunity to introduce him to the basics of what it means to be a criminal defense attorney and a great opportunity for us to take a ‘road trip’ together before he leaves. And, I could certainly use the company.

“We left our home at 7:00 that morning, and along the way we discussed the Declaration of Independence and what it means to our country 240 years later. We also discussed criminal defense and what it means to be a criminal defense attorney, since he has a passionate interest in becoming a public defender or working for the Innocence Project. We read at Quanah in Hardeman County without an audience, and then drove on to Paducah and the Cottle County Courthouse. I noticed the building had engraved in it the following: ‘To no one will we sell deny or delay justice.’ I have been to this courthouse at least ten times and I had never noticed this before. I guess that is what happens when you are rushing through the day. We read the Declaration to ourselves and headed on to Guthrie in King County.

“Honestly, at this point, I did not expect anyone to be at any of the remaining courthouses, but I was extremely surprised when we arrived at the King County Courthouse. We had a reception committee! The lady that maintains the local museum for King County was there waiting for us, later joined by several other ladies.

“Not only were they there for the reading; they were excited and honored that King County was included, a very humbling experience for me. These ladies were excited that TCDLA would think of sending someone to Guthrie, and asked about the history of the readings, which I explained the best I could.

“As we headed out of the courthouse, we were asked if we would be interested in touring their museum after our reading. Of course we were interested! I knew very little about King County other than it is home to the 6666 Ranch and thought it would be enlightening to learn more. We read the Declaration to these wonderful ladies, and then we toured their museum.

“I learned several interesting facts about the tiny town of Guthrie. First, Guthrie actually played a very big role in an advertising campaign and had connections to Hollywood. This came about when Marlboro decided to do the Marlboro Man campaign and chose one of the 6666 cowboys to be a Marlboro Man. Although there were other Marlboro Men, this put Guthrie up there with O’Donnell and Hoss Cartwright in my eyes.

“The old-style courtroom was not only used to try cattle rustlers early on; it was also used as a community events center for quilting bees as well as the church and school. When there was a trial, they had to hold school outside or cancel it.

“After leaving Guthrie, we drove to Aspermont in Stonewall County. This courthouse closed at noon for the holidays so we read the Declaration and moved on to Snyder.

“At the Scurry County Courthouse, we met with the county judge’s secretary. She said that they were expecting us but that most of the people in the courthouse had left for the day due to the holidays. We went out front and waited for a few minutes, then read the Declaration alone.

“Our rounds being completed, we drove home after a ten-hour drive that covered more than 500 miles, with stops in five rural counties. We were both exhausted but extremely happy about what we had done. We saw a lot of beautiful country, most of which my son had not seen, and we spent some very good time together discussing the past and the future.

“Although we did not have the big turnout that some of the rest of the counties had, those ladies in King County and the time spent with my son are things I will never forget.”

—Donnie Yandell, Lubbock

“This year marked the start of a new July 4 family tradition—reading the Declaration of Independence. Due to work conflicts, I held the Jack County reading on July 4. We attended our annual pancake breakfast and flag ceremony at church that morning, but in the afternoon, we had a new activity—a Declaration of Independence reading. In our one-hour ride to the courthouse in Jacksboro, we assigned parts and practiced reading together as a family.

“Our small audience of nine people came for the express purpose of hearing the reading of the Declaration of Independence, as it was a Sunday and the courthouse was closed. It reinforces to me that a few people can make a difference. I talked to them before we started the reading. One of them was an older gentleman who came by himself. He was a veteran and the former mayor of the City of Jacksboro. He told me some stories of his service. In my heart, he was the real hero there.

“I was proud of my family and their participation: wife Jessica, daughters Eliana and Sariah, and sons Elijah, Josiah, and Jonah. It taught me that I have more to do to inspire greater patriotism in myself, my family, and my community. Thank you TCDLA for giving my family and me the opportunity to be a part of something much greater than us.”

 —Robert Massey, Wichita Falls

“Laurie Key, my husband Levi, and I made our way over to Silverton for the Briscoe County reading. We ate lunch at the Mean Woman Grill across the street from the courthouse, and discussed the likelihood that nobody would show up at 2:30 pm the Friday of a holiday weekend. We were wrong. It was by far our biggest and most enthusiastic crowd of our three-courthouse day. About 20 people showed up. They brought lawn chairs, picnic blankets, and a cooler with bottled water. We met several county officials, including the heads of both the Republican and Democratic parties. They were attentive, friendly, and grateful.

“We decided to take the scenic route home and drove over to Quitaque. We went through Caprock Canyon State Park, where we learned that the bison herd always has the right-of-way, and they’re not inclined to hurry. They got up-close and personal, checking out our vehicle as they meandered across the path. After 10 or 15 minutes, we were finally able to pass, and drove through the rest of the park. We stopped for a quick selfie, and then got on the road. We arrived home around 6 pm. It was a great day!”

—Sarah Beth Johnson, Lubbock

“Two hundred forty years after the U.S. declared its independence from Great Britain, a group gathered on the courthouse steps in Live Oak and McMullen counties to read the Declaration of Independence.

“Michelle Ochoa—with her son, Matthew—Michelle Rice, and Jessica Canter, all of whom are Texas Criminal Defense Lawyers Association lawyers out of the Bee County Regional Public Defender’s Office, traveled July 1 with their investigator, Henry Guerra, to five area counties to read the Declaration of Independence in honor of Independence Day.

“Rice said they did it ‘to remind people of our freedoms and how we did establish ourselves away from the king to protect our own freedoms. And from a defense attorney’s aspect, we feel that we are still helping protect people’s freedoms.’”

The Progress, Three Rivers, July 9, 2016

“I was reading the Declaration of Independence all by myself in Coldspring, San Jacinto County, around 12:30 pm in front of the courthouse. I heard a loud diesel truck engine, then a guy from there yelling ‘God bless America!’”

—­Bob Mabry, Conroe

“A group of local attorneys took a few moments Friday afternoon to recite the words which helped create the United States 240 years earlier. For the third straight year, members of the Hunt County Bar Association conducted a public reading of the Declaration of Independence.

“Each of the readers—which included 196th District Court Judge J. Andrew Bench, Hunt County Court-at-Law Timothy Linden, 354th District Court Judge-elect Keli Aiken, as well as attorneys Katherine Ferguson, Craig Black, Russell Brooks, Shawn Council, Smith Gilley, and Toby C. Wilkinson—each read a portion of the document.

“The crowd which had gathered to observe the ceremony then joined in the Pledge of Allegiance. Ferguson pointed out the event went on as scheduled, even though the courthouse itself was closed Friday due to a fire which was reported in the building Thursday afternoon. ‘Many of these lovely people did not have to come into the office today, but they came out to read anyway,’ Ferguson said.

“The Hunt County Bar Association joined defense lawyers from across Texas in reading the Declaration of Independence.”

Greenville Herald Banner, July 2, 2016

“My friend and I arrived in Mason at 1:15 and found that there was only one county commissioner waiting for us to read. I was kind of disheartened when he said, ‘I bet this is just like church. Wait until 1:28 to see how many people show up.’ And just like that, 1:27 came and so did 3 more people, and then by 1:29 we had people coming out of the courthouse, coming around the courthouse, and coming from the parking lot that just seemed to be created behind me. That was awesome! I did my welcome and my brag about all 254 counties having a reading and then started the reading. Afterwards I had one lady ‘fight’ for her flag and copy of the Declaration of Independence. (I told her they were hers to keep forever, and she could have more. She was happy and proud.) A gentleman asked if it was okay to get another copy of the Declaration to send to his son who is at basic training for the Air Force. He wanted to make sure his son never lost sight of why he is joining the armed services. The crowd, the reading, and the feelings: now that was amazing!”

—Tammy Schmidt Keener, Fredericksburg

“Three generations of the Lanehart family headed south on our 320-mile, three-county reading trek: daughter Lindsey, four-year-old grandson Rocky, and me. Not a soul showed up for us in the tiny towns of Gail and Garden City. We arrived in Big Spring early, so we grabbed a bite at the restaurant in the historic restored Settles Hotel: magnificent! At the Howard County Courthouse, it was just us again. As Lindsey read the Declaration, I snapped a photo of Rocky as he solemnly marched up and down the lawn with his little U.S. flag: poignant and beautiful. Despite the lack of turnout, I will always remember this day: family and country.”

—Chuck Lanehart, Lubbock

“Rusty Gunter, one of the organizers of this year’s reading in Lubbock, said criminal defense attorneys do their part to protect citizens’ rights enshrined in the Bill of Rights. ‘Daily we fight for the Bill of Rights and for the principles embodied by the Declaration of Independence,’ he said. ‘And it’s just that time of year where we’re able to bring it into focus.’”

Lubbock Avalanche-Journal, July 1, 2016

“I read the Declaration on the steps of the Palazzo Publico in Siena, Tuscany, Italy. The Palazzo is home to one of the first forms of republican government outside of Rome. Painted on the walls inside are two famous frescos. In ‘The Allegory of Good Government,’ the central character is guided by Faith, Hope, and Charity, while conferring with the proper virtues necessary for a proper and just ruler: Peace, Fortitude, Prudence, Magnanimity, Temperance, and Justice. Appropriately, Justice is depicted balancing the scales held by Wisdom. On the other hand, in ‘The Allegory of Bad Government,’ the central figure is a demonic-looking character with horns and fangs depicting Tyranny. Surrounding him are characters representing Cruelty, Deceit, Fraud, Fury, Division, and War.

“It meant a lot to be standing in front of foreigners reading a document sacred to us Americans. I look forward to more readings in places like this all over the world.”

—Brent Mayr, Houston

“I would like to thank Dick Baker, Allison Clayton, and LCDLA for what you did today. We had a good crowd at the Terry County courthouse and Dick and Allison did an outstanding job. I am ashamed to say that I have probably not ever read the Declaration of Independence from start to finish. I’m glad that I have now heard it. The lessons are as valuable today as they were back then.”

—Kelly Moore, Presiding Judge, 9th Administrative Judicial Region

“The Fourth of July is more than fireworks, food and friends for Mary Beth Harrell, a local lawyer who organized this year’s reading of the Declaration of Independence that celebrates the 240th anniversary of the historical document. ‘The Declaration of Independence is our most cherished symbol of liberty embodying our stand against tyranny,’ Harrell said. ‘Our founders resisted the illegal and immoral practices of the crown.’”

Killeen Daily Herald, July 2, 2016

“Well, traveled another 40 miles across desert flats and foothills to reach Mentone. The highway was a two-lane loaded with extra-large oilfield eighteen-wheelers heading to recently expanded oil fields and facilities. Courthouse had a huge gas flame from a gas flare burning 400 feet nearby. District clerk had her office and storage books in what looks like the lobby of the small old courthouse. District clerk was very nice, remembered me from last year. Land men and the five other people stopped and listened. They really listened, and one young man in a baseball cap commented, ‘Sounds like we might need another Declaration of Independence soon.’ Great time. Loving County: least-populated county in the state. Okay heading back to base. Total mileage today should be 162. Catching Monahans, Pecos, and Ft. Stockton tomorrow.”

—Kevin Acker, Monahans

“The unique fact of this year’s reading was all 254 counties across the state also had their own reading for the first time. ‘Having the freedoms that these 56 people who signed the declaration of independence, 240 years ago . . . just because they signed that document 240 years ago doesn’t mean that we can continue in those freedoms if we do not protect them and exercise them. If we don’t appreciate what we have,’ Shane Phelps said, who organized the event.”

—KAGS-TV, Bryan, July 1, 2016

“The Hunt County Bar Association joined defense lawyers from across Texas in reading the Declaration of Independence.”

Greenville Herald Banner, July 2, 2016

“Travis County’s reading of the Declaration of Independence was accompanied by three American Sign Language in­ter­preters: Shawn Whitley, Billy Collins, and me. Austin is home to the Texas School for the Deaf and one of the largest deaf populations in the nation. We are hoping to make this a tradition in Austin and organize volunteer interpreters in additional counties.”

—Amber Farrelly, Austin

“Congratulations to Robert Fickman! You accomplished the near impossible. It’s a feat to get two lawyers to agree on anything! You have been able to get thousands of lawyers from across this great State, each of the 254 Texas counties, to agree to read the Declaration of Independence. The lawyers have been from big counties with 50 readers and small counties with one or two readers. It was not easy for you. It took ingenuity, perseverance, and even some cajoling on your part. The readers reflect the widest diversity of backgrounds, life experiences, and belief systems imaginable. But you got us all to come together for a common purpose. One thing is certain Robert—every single person that participated in a reading enjoyed it. We were all brothers and sisters in that moment. We were all Americans and nothing else. We all walked away feeling better for some reason. That reason is you. Thank you!”

—Roberto Balli, Facebook blog July 2, 2016

“I woke up thrilled to read the Declaration of Independence with my fellow criminal defense attorneys and friends. I arrived at the courthouse for some docket calls and saw some defense attorneys decked out in red, white, and blue. We were scheduled for 11 am at the courthouse, and we had a larger crowd then we ever had in Nueces County. No one had to read more than one part: We had plenty of defense attorneys. Many of the judges showed up and watched, people cheered us on, and we read with feeling behind our words. It was exciting and it was beautiful. I am grateful to those who started this wonderful tradition. It was a very proud and beautiful moment in Nueces County.”

—Lisa Greenberg, Corpus Christi

“The sixth annual reading of the Declaration of Independence was presented on the Henderson County Courthouse steps at noon Friday. The audience sat under the shade of the large trees on the courthouse lawn as local attorneys delivered the different sections of the document that proclaimed America’s Independence from Great Britain.

“Attorneys taking part in the reading included Dan Hunt, Amber Slaton, Marianne Warren, Steve Green, Linda Altier, Jeffery Irion, and Justin Weiner.

“The reading was sponsored by the Texas Criminal Defense Lawyers Association and the Henderson County Bar Association. Attorney Danna Mayhall served as master of ceremonies for the reading. She said the Continental Congress voted to declare independence on July 2, and the declaration was adopted on July 4.

“The audience at the courthouse was invited to join the presenters in reading the final segment of the Declaration, ending with the words: ‘And for support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.’

“The Athens High School Show Choir opened the program with the singing of ‘The Star Spangled Banner,’ and closed with a patriotic medley called ‘United We Stand.’”

Athens Daily Review, July 1, 2016

“Hot dogs and fireworks are not to be dismissed in the annual observance of Independence Day, but attorneys across the state joined in an effort to remember the real reason we celebrate the Fourth of July. Madisonville attorney Wes Hammitt said he was asked by representatives of the Texas Criminal Defense Lawyers Association to read a copy of the Declaration of Independence in front of the courthouse. He did just that for a small group of residents on Friday morning.

“‘It’s 240 years old, and it’s still relevant today,’ Hammitt said, ‘It’s an important thing.’”

The Madisonville Meteor, July 6, 2016

“In an effort to remind people that there is more to the July Fourth holiday than family get-togethers and backyard barbecues, a group of local attorneys took turns reading the Declaration of Independence at the Angelina County Courthouse Friday. Organizers of the event said that others would be reading the Declaration of Independence at the other 253 county courthouses in the state of Texas Friday.”

—News Channel 25, Waco/Killeen/Temple, July 1, 2016

July/August 2016 Complete Issue – PDF Download

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DOWNLOAD PDF VERSION

Features
21 | The Many Faces of Rusty: Pictures from the Rusty Duncan Advanced Criminal Law Seminar
24 | SMO: Front–Loading Mitigation – By Gerald Bierbaum
27 | July Fourth Readings: The Principals – The stalwarts leading the charge
29 | Reading Old Words Is Good for the Soul: Reflections on the 2016 TCDLA Declaration Readings – By Chuck Lanehart
32 | Declaration Reading Recollections and Media Mentions – Compiled by Chuck Lanehart

Columns
7 | President’s Message
9 | Editor’s Comment
11 | Ethics and the Law
14 | Federal Corner
18 | Said & Done

Departments
4 | TCDLA Member Benefits
5 | CLE Seminars and Events
41 | Significant Decisions Report

President’s Message: Numero Dos – By John A. Convery

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As I write this I’m still in the honeymoon phase of my TCDLA presidency. I’m on the beach at The Pearl resort on South Padre Island, with friends and family, attending our TCDLA Members Trip. This even includes our CDLP seminar—Upholding Justice One Client at a Time—the Board of Directors orientation for TCDLA, the Criminal Defense Lawyers Project (CDLP), and our foundation, the Texas Criminal Defense Lawyers Education Institute (TCDLEI). It’s a reunion with TCDLA family and friends I have known for years, and an opportunity to meet newer members of TCDLA and their families.

The weather this week on South Padre Island has been perfect. The beach BBQ at Beach Access #5 the best ever, thanks to Bill Trantham, Bobby Lerma, and volunteers. Thank you all! Susan Kelly towed her Hobie Cat catamaran sailboat here from Waco for the event so that Don Flanary and I could pretend to be sailors and pirates. Our TCDLA staff, Melissa Schank, Mari Flores, Craig Hattersley, have all done an incredible job and deserve a huge thank you for making this beach event shine.

I’m looking forward to the sand castle–building class we have scheduled later today. Playing in the sand and the feeling of sand on my feet and between my toes is one of those connection experiences for me, connecting me with childhood, family, friends, and life. After dinner at Louie’s Backyard tonight, there will be a fireworks display over the Laguna Madre, and my President’s Fiesta dinner and Conjunto dance party is set for Saturday evening on the hotel patio overlooking the beach.

TCDLA members have an impromptu and occasionally extensive “happy hour” at the hotel bar here in the evening. Members unwind and share their professional and personal experiences—it’s a storyteller’s master class! Shots of Fireball rule, but you are welcome to participate even if you’re drinking sparkling water.

I treasure this SPI event because it’s so rewarding to seminar and socialize with our TCDLA members and their families, especially the children. Over the years at our SPI seminar I have met toddlers, met them again as grammar and high school students, and again on summer break from college. Today is Friday. My daughter will arrive soon from Austin to spend the weekend with Mom and Dad and TCDLA members she has known since she could walk. I’m thrilled that she is looking forward to the visit.

If you missed SPI this year, plan ahead now and join us at the beach next year! We are also sponsoring another great opportunity for continuing legal education and family fun on the President’s Trip, a cruise on Royal Caribbean’s Liberty of the Seas leaving Galveston on February 12 for seven days, with stops in Jamaica, Grand Cayman, and Cozumel. The cruise is surprisingly affordable, especially when you consider there will be 10 hours of outstanding continuing legal education. Bring the family. Invite friends. Leave the cold behind and join us on this TCDLA cruise adventure.

Editor’s Comment: Wear Silver – By Sarah Roland

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Whether you believe it’s a matter of choice or genetics or a combination of both, addiction affects us all. It is a disease, and it doesn’t discriminate among us. Addiction has touched each of our lives in one way or another. Some of us have deeply personal experiences, but all of us come face to face with addiction and the havoc it brings on a regular basis by nature of what we have chosen to do.

The repeat client who keeps getting DWIs and/or drug charges. The young person who has been using since adolescence and can’t stop. We all have these clients. It’s great to help with the legal issue(s)—to get a not guilty, a dismissal, or pretrial diversion. But that’s only a Band-Aid—it’s a temporary fix for a larger problem. The question is what are we doing to help them with their disease apart from the case. Certainly, treatment and meetings will certainly help mitigate, but if that’s the only spectrum through which treatment and meetings are presented, a larger opportunity has been missed. Spend some extra time with these clients. Talk to them about the disease and how to manage it. Point them in the right direction to get help. You may be the only one who does, or you may be the person who finally gets through to them. We have that inherent obligation to our fellow man. We must be more than sympathetic; we must act in whatever capacity we can.

We need to treat people with substance abuse problems as human beings, and that begins, perhaps, with law like Health and Safety Code 483.101–106—a law that values the lives of such persons. Health and Safety Code 483.101–106 now permits a person to possess Opioid antagonists (drugs that bind to Opioid receptors in the brain and block or inhibit the effects of Opioids—such as heroin, morphine, etc.—from acting on those receptors) with, or without, a prescription. This means Naloxone or Naltrexone. A person who is “at risk of experiencing an Opioid-related overdose” can legally possess Naloxone or another Opioid antagonist. So, too, can a family member, friend, or other person of a person at risk of experiencing an Opioid-related overdose. The Health and Safety Code now insulates a doctor who in good faith prescribes an Opioid antagonist from criminal or civil liability for prescribing, or failing to prescribe, an Opioid antagonist, and from any outcome resulting from the eventual administration of the Opioid antagonist.

August 31st is International Overdose Awareness Day (IOAD). It’s a day that began in 2001 to focus on prevention and remembrance. The tragedy of overdose deaths is preventable. Remember those who we have lost, and let’s do what we can to prevent it. Wearing silver on August 31st celebrates life, acknowledges loss from overdose, and demonstrates support. The message silver sends is that the infinite value of each human being nullifies presumption, prejudice, and stigma towards people who use drugs. Wear silver.

Ethics and the Law: Sticks and Stones

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“Sticks and stones may break my bones but words will never hurt me.” An old saying we most all grew up with, and also one that many have discovered to be untrue. The phrase was originally presented as an “old adage” and was first cited in The Christian Recorder of March 1862, a publication of the African Methodist Episcopal Church. Notably, the reference to the phrase as an “old adage” suggests an even earlier coinage. Although the phrase has good intentions to help toughen a person’s skin, it has become fairly clear that what happens after the words are uttered and transmitted not only do hurt, but also break bones, destroy relationships, cause injury, and in extreme cases cause death. We quickly find out the statement is false and misleading when we enter a place called “the real world.”

In the legal field, words have a grave effect on essentially every part of the practice. Attorneys are taught early on that their chosen words can and will be the deciding factor of a client’s fate—whether the words are uttered in front of a courtroom or transmitted through messages and social media. Even words from a jailhouse snitch or co-defendant can have the effect of stripping people of their rights and sending them to jail—regardless if those words were in fact true or whether they were simply presented in a way others were willing to accept as true.

This is also very critical when speaking to a police officer. James Duanne, a Regent University School of Law professor, former criminal defense attorney, and Fifth Amendment expert, gave a lecture specifically targeting this issue and emphasizing the importance of not speaking to the police. His lecture went viral after being posted on Youtube for its controversial nature; however, Duanne stands firm in his belief that speaking to an officer can only hurt your case—regardless if you are truly innocent or guilty. Duanne gave this lecture to a group of law students with Virginia Beach Police Department Officer George Bruch present—both of whom both explained in practical terms why people should never talk to the police under any circumstances. Duanne begins his lecture by providing a quote from Supreme Court Justice Robert Jackson, who stated in Watts v. Indiana, 338 U.S. 49, 59 (1949), “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”

Duanne then provides some top reasons why speaking to the police can only harm your case. A brief recall of his top rules include: “1) Even perfectly innocent citizens may get themselves into trouble, even when the police are trying to do their jobs properly because police malfeasance is entirely unnecessary for the innocent to convict themselves by mistake;
2) talking to police may bring up erroneous but believable evidence against even innocent witnesses; and 3) individuals convinced of their own innocence may unknowingly commit a crime which they inadvertently confess to during questioning.” Duanne also provides practical examples to illustrate this notion.

One example Duanne gave that could essentially happen to anyone was where a police officer went to a citizen’s home investigating a murder in the area, asking the citizen if he had known or heard anything about the shooting. The citizen replied that he knew nothing about the shooting, and that he’d never shot a gun before in his life. Later, a witness mistakenly told police she thought she saw that citizen near the victim around the time of the shooting. The citizen got charged for the murder, and the prosecutor called the officer who had initially questioned the citizen to the stand and asked if there was anything suspicious about the citizen’s answer. The officer simply replied: “Yes, I had never mentioned anything about a shooting. I had asked simply him if he had known anything about the murder.

And just like that, regardless of what the citizen said on the stand, the officer’s statement has been heard by the jury, and it is now up to the jury to decide whether the officer misremembered his own question or whether the citizen is just trying to cover up what really happened. Duanne then provides famous examples of celebrities who didn’t get convicted of the underlying crime or offense because there was not enough evidence—but because they had denied the act to the police and/or FBI, they were charged and convicted solely for lying to an officer, which is a punishable crime. We should all take note of Duanne’s lecture and points so that we can apply it in our daily lives. Citizens should not only follow Duanne’s rules when speaking to police; they should also apply these principles when speaking through public forums since those statements are just as permanent.

In this new age of technology, with Facebook, Twitter, Snapchat, Instagram, email, and the like, it is much more important that we all as professionals choose our words appropriately and cautiously because once those words are out there, the bell cannot be unrung—even if later deleted or erased, a recording will always exist on the web and may well resurface at any time.

Joel Colvin, a cybersecurity consultant and attorney who helps me on cyberspace cases and owner of Colvin Training and Consulting Inc., is specifically hired by law firms to help set policy, pass security audits, and investigate breaches of security. He warns that it is simply not possible to retract an electronic mes­sage or force a delete once sent. The message is then essentially in the control of the recipient, who can choose to save it, forward it, take a picture of it, print it, or do a number of different things with it. Further, anyone who the recipient sends the message to also holds that same power, and the chance of dis­tribution is that much greater. The problem expands exponentially as each recipient becomes a new sender.

Accordingly, how far a message goes effectively depends on each recipient and the length of time the message is kept. For example, electronic mailing lists accelerate publications of messages even faster now. Emails sent to an electronic mailing list are automatically saved by the mailing list server as well as potentially any or all members of the list. By design, a mailing list is created to get the message out to a large number of people, quickly and conveniently—two factors that are usually largely the cause of most mistaken message transmittals. The concept behind Twitter, Facebook, LinkedIn, and other social media platforms is based on this same “mass publication made easy,” but in turn this means that there is always a way to capture the message.

Joel further advises that for lawyers, this presents both a prob­lem and an opportunity. If someone finds the system where the message still exists, a client may be screwed or saved, de­pend­ing on what that message says or to whom it was sent. For lawyers as publishers, it boggles the mind why any would post, email, or tweet anything damaging about their client or their case, regardless if that message was intended to only reach a “safe” recipient. Sometimes, even the location from where a message was sent can be damaging to a client by being locatable geographically through metadata associated with the message sent.

Michael Mowla, an esteemed member of the Texas Criminal Defense Lawyers Association and Ethics Committee, as well as a Board Certified Criminal Appellate Lawyer by the Texas Board of Legal Specialization, makes it a point to live by this principal: Unless you are willing to allow it to be read in open court, do not send a communication by electronic means. Mowla continues by stating that he also always follows two main rules: 1) Never text information about a case—texting is to tell someone you are running late or sending a newspaper article; and 2) never send negative or incriminating information about any client through any electronic means.

With all the technological advancements and changes, the legal world is beginning to take note and is slowly churning out new laws regarding social media and text messages. The Mississippi Ethics Commission, for example, has issued an opinion that text messages concerning government business, regardless of the device used to produce them, qualify as public records, which the press and anyone else is entitled to request. Moreover, the commission stated, “Any doubt about whether records should be disclosed should be resolved in favor of disclosure.”

Leonard Van Slyke, media-law attorney and adviser to the Mississippi Center for Freedom of Information, stated that he believes the goal and significance of this ruling is to prevent public officials from using text messages as a method to circumvent compliance of the Public Records Act. This serves as another example of the growing connection between ethics, the legal world, and social media/messaging.

As lawyers, we will always be held to a higher ethical standard than the average layman. Therefore, prior to speaking, you must think about how one’s words will affect the client and whether the statements will better serve to zealously advocate for the client. By gaining a better understanding of the power of words, attorneys can speak more strategically and provide more effective litigation.

Assessing the statements you make to others is a vital key to successful representation, and although words may not break bones, they can break an individual’s spirit and reputation and is likely to breed apathy and resentment.

I believe that life and death are in the power of the tongue; those who love to talk will reap the consequences.

—Proverbs 18:21

A very special thanks to Monica Ishak, Michael Mowla, Joel Colvin, and Craig Hattersley for their advice and guidance with this article.